M.K. Bainiwal vs Union Of India And Others
2010 Latest Caselaw 1721 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 2144/2010

%                  Date of Decision: 26th MARCH, 2010


#     M.K. BAINIWAL                             .....PETITIONER

!                  Through:   Petitioner in person.

                                    VERSUS

$     UNION OF INDIA AND OTHERS                       .....RESPONDENTS

^ Through: Ms. Nidhi Minocha, counsel for counsel for the respondent No. 1/UOI.

Mr. M.M. Sudan, Advocate for the

CORAM:

Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL)

C.M. No. 4279/2010 in W.P.(C.) No. 2144/2010

Exemption as prayed for is granted subject to all just exceptions.

W.P.(C.) No. 2144/2010 & C.M. No. 4280/2010 (for stay)

The petitioner had joined service with the respondent No. 2 as

Deputy Marketing Manager (Grade-I) on 08.09.1995. In the course of

time, he was promoted from the post of Deputy Marketing Manager

(Grade-I) to Marketing Manager w.e.f. 16.10.1998; then, to the post of

Chief Marketing Manager w.e.f. 22.03.2003 and then, to the post of

General Manager, presently held by him w.e.f. 31.03.2008. The

petitioner was transferred to Hyderabad by respondent No. 2 vide

transfer order dated 04.12.2009 and was relieved from Delhi office vide

relieving order dated 07.12.2009. Despite his relieving from Delhi office,

he did not go and join at the place of his transfer in Hyderabad. He chose

to challenge the transfer order in writ petition being W.P.(C.) No.

14134/2009. In that writ petition, he prayed for stay of his transfer but

that was declined by this Court speaking through Hon'ble Ms. Justice

Rekha Sharma vide order dated 23.12.2009.

2. Aggrieved therefrom, the petitioner filed a Letters Patent Appeal

being L.P.A. No. 37/2010 which came up for hearing before Division

Bench-II on 15.01.2010 but was transferred to Division Bench-III. The

L.P.A. No. 37/2010 filed by the petitioner against order of Single Bench

dated 23.12.2009 was withdrawn by him from Division Bench-III and

thereafter, he again moved applications being C.M. No.s 1258-59/2010

for stay of his transfer and these applications were dismissed by this

Court vide its order dated 29.01.2010. Thereafter, the writ petition being

W.P.(C.) No. 14134/2009 filed by the petitioner against his transfer was

dismissed on merits vide order of this Court dated 18.02.2010. The

petitioner was aggrieved by the order passed by this Court on 18.02.2010

dismissing his writ petition against transfer order and he, therefore, filed

a Letters Patent Appeal being L.P.A. No. 168/2010 which has been

dismissed by the Division Bench vide its order dated 11.03.2010. The

transfer of the petitioner from Delhi to Hyderabad vide transfer order

dated 04.12.2009 has been upheld up to the Division Bench and the

matter has already taken several rounds of litigation as mentioned

hereinabove. The petitioner has suppressed the dismissal of L.P.A. No.

168/2010 by the Division Bench in the present writ petition for reasons

best known to him.

3. The fact of the matter is that the petitioner has not joined the place

of his transfer though all efforts made by him for stalling the said transfer

have failed in various rounds of litigation mentioned above. This, in fact,

amounts to misconduct on the part of the petitioner in not joining the

place of his transfer despite command of the Court. This Court, while

dismissing the writ petition (W.P.(C.) No. 14134/2009) against his

transfer, vide its order dated 18.02.2010 took note of a judgment of the

Hon'ble Supreme Court in Gujarat Electricity Board & Another Vs.

Atmaram Sungomal Poshani, AIR 1989 1433, and reserved liberty to the

respondents to initiate disciplinary proceedings against the petitioner for

non-compliance of transfer orders as per observations of the Hon'ble

Supreme Court contained in the said judgment.

4. The petitioner has filed the present writ petition for directions to

the respondents to revalidate his transfer order and order of his relieving

and in the meanwhile allow him to work at Delhi. The petitioner has also

prayed for directions to the National Commission for Scheduled Castes

(respondent No. 7 herein) to produce the record of his case before the

Court as, according to him, irresponsible handling of his matter by

respondent No. 7 has lead to arbitrary, unfair and mala fide action

against him by respondents No. 2 to 6.

5. The record of the case reveals that the petitioner is using the SC/ST

card against the management of the respondents only to stall his transfer

from Delhi to Hyderabad. Neither the Commission for Scheduled Castes

nor the police, before whom complaint of SC/ST atrocities was made by

the petitioner, has found any substance or merit in the accusations of the

petitioner.

6. This Court at the time of hearing the present writ petition asked the

petitioner if he is willing to join the place of his transfer to which he

responded that he can go and join the place of transfer provided the

respondents revalidate his transfer order and relieving order and give

him joining time. The Court also asked the petitioner how much joining

time he wants for joining duties at Hyderabad. He states that he may be

given a week's more time to go and join at Hyderabad subject to the

respondents revalidating his transfer order and the relieving order. This

condition of revalidation of transfer/relieving order imposed by the

petitioner is wholly unacceptable to the Court for the reason that the

petitioner has been repeatedly informed by the Court that he can treat

his transfer order and relieving order revalidated in Court itself. At this

stage, the petitioner states that he gives up his claim for revalidation of

his transfer and relieving order and agrees to go and join at the place of

his transfer at Hyderabad within a week's time.

7. In view of the above submission made by the petitioner, he is given

ten days joining time for joining the place of his transfer at Hyderabad.

The petitioner is directed that he should join the place of his transfer at

Hyderabad by 05.04.2010. The period of his absence from the service of

respondents No. 2 to 6 from the date of his relieving, i..e., 07.12.2009 till

the date of his joining at Hyderabad shall be dealt with by the

respondents in accordance with the rules applicable in this regard.

8. In the facts and circumstances of the case, I do not consider it

necessary to call for any record from the Office of National Commission

for Scheduled Castes as prayed for by the petitioner because this Court,

on going through the record, is quite convinced that the petitioner is

playing SC/ST card against the management (respondents No. 2 to 6) for

ulterior motives only to stall his transfer. In fact, the National

Commission for Scheduled Castes as well as the police before whom the

petitioner had made complaints against the management of SC/ST

atrocities on him have on inquiry found that there was no substance on

his said complaints. This fact was duly taken into account by this Court

while dismissing the writ petition of the petitioner against his transfer

vide order dated 18.02.2010 in W.P.(C.) No. 14134/2009 and also by the

Division Bench in its order dated 11.03.2010 in L.P.A. No. 168/2010.

Hence, the prayer made by the petitioner for directions to the National

Commission for Scheduled Castes for production of record is declined.

9. In view of the foregoing, I do not find any merit at all in this writ

petition which fails and is hereby dismissed in limine but having regard to

the fact that the petitioner is appearing in person, no Costs is imposed.

MARCH 26, 2010                                        S.N.AGGARWAL, J
'BSR '